MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 June 2003                  
	DOCKET NUMBER:    AR2003084977

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn. 		Chairperson	
	Mr. Hubert O. Fry		Member	
	Ms. Marla J. Troup		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his undesirable discharge (UD) be upgraded.  

APPLICANT STATES:  In effect, that he served over two good years prior to his discharge.  

EVIDENCE OF RECORD:  The applicant's military records show:

On 18 November 1966, he enlisted in the Regular Army for three years.  He successfully completed basic training at Fort Ord, California and advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of training, he was awarded military occupational specialty (MOS) 11B (Infantryman).

The applicant’s record confirms that the highest rank he held while serving on active duty was private first class/E-3, which he attained on 16 February 1968.  It also shows that he was reduced to private/E-1 on 10 August 1968, as a result of a court-martial sentence.  On 23 December 1968, he was once again advanced to private/E-2.

The applicant’s service record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.  In addition, his records shows court-martial convictions by both a summary and special court-martial.  

On 2 May 1969, the applicant’s unit commander recommended that the applicant be discharged for unfitness.  This recommendation was primarily based on the applicant’s frequent incidents of a disrespectful nature with military authorities and established patterns of shirking.  It also documented the extensive counseling the applicant received from various members of the chain of command, and his record of NJP and court-martial convictions.  The record also shows that during his tenure on active duty, the applicant accrued 131 days of time lost due to being absent without leave (AWOL) and in confinement.  

On 3 May 1969, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unfitness.  He consulted with legal counsel, and after being advised of the basis of the contemplated separation action, he completed an election of rights.  He elected to waive consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement of rebuttal in his own behalf.  

On 2 June 1968, the applicant was discharged under the provisions of Army Regulation 635-212.  As a result of the authority and reason for discharge, the applicant was also automatically reduced to the lowest enlisted rank.  

The separation document (DD Form 214) issued to and authenticated by the applicant with his signature on the date of his separation confirms that he held the rank of private/E-1 at that time.  This document also verifies that at the time of his discharge, he had completed a total of 2 years, 2 months, and 3 days of creditable active military service, and he had accrued 131 days of time lost due to AWOL and confinement.  

On 7 January 1980, the Army Discharge Review Board reviewed and denied the applicant’s request for an upgrade to his discharge after determining that the discharge had been both proper and equitable.  

Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contention that he had served two good years before his discharge and as a result his discharge should be upgraded.  However, the Board finds his service was not sufficiently meritorious to warrant the requested relief. 

2.  The Board also notes that the applicant was notified of the contemplated separation action by his unit commander, consulted legal counsel, and was advised of the basis for the contemplated separation action and of its possible effects.  In addition, subsequent to this counseling, he elected to waive his right to have his case considered by a board of officers.

3.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it finds that the character of the applicant’s discharge accurately reflects his overall record of service.  Therefore, the Board concludes that an upgrade to his discharge is not warranted at this time. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__FE__  __HOF___  __MT _  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2003084977	
SUFFIX		
RECON		
DATE BOARDED	2003/06/17	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/06//02	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.